Acts and Regulations

S-5.5 - Securities Act

Section 153
Disposition versions

Full text
Liability for misrepresentation in circular
2012, c.31, s.14
153(1)Where a take-over bid circular or any notice of change or variation in respect of a take-over bid circular is required to be sent under the regulations and that document contains a misrepresentation, a person to whom the circular or notice was sent shall be deemed to have relied on the misrepresentation and may elect to exercise a right of rescission or a right of action for damages against the offeror or a right of action for damages against
(a) every person who at the time the circular or notice, as the case may be, was signed was a director of the offeror,
(b) every person whose consent in respect of the circular or notice, as the case may be, has been filed as required by the regulations, but only with respect to reports, opinions or statements that have been made by the person, and
(c) each person who, as required by the regulations, signed a certificate in the circular or notice, as the case may be, other than the persons referred to in paragraph (a).
153(2)Where a directors’ circular or an individual director’s or officer’s circular or any notice of change or variation in respect of such circular is required to be sent under the regulations and that document contains a misrepresentation, a person to whom the circular or notice was sent shall be deemed to have relied on the misrepresentation and has a right of action for damages against every director or officer who signed the circular or notice that contained the misrepresentation.
153(3)Subsection (1) applies with the necessary modifications where an issuer bid circular or any notice of change or variation in respect of such circular contains a misrepresentation.
153(4)No person is liable under subsection (1), (2) or (3) if the person proves that the security holder had knowledge of the misrepresentation.
153(5)No person, other than the offeror, is liable under subsection (1), (2) or (3) if the person proves
(a) that the take-over bid circular, issuer bid circular, directors’ circular or individual director’s or officer’s circular, as the case may be, or any notice of change or variation in respect of such circular was sent without the person’s knowledge or consent and that, on becoming aware of it, the person gave reasonable general notice that it was so sent,
(b) that, after the sending of the take-over bid circular, issuer bid circular, directors’ circular or individual director’s or officer’s circular, as the case may be, or any notice of change or variation in respect of such circular, on becoming aware of any misrepresentation in the take-over bid circular, issuer bid circular, directors’ circular, individual director’s or officer’s circular or notice of change or variation, the person withdrew the person’s consent to it and gave reasonable general notice of the withdrawal and the reason for the withdrawal,
(c) that, with respect to any part of the circular purporting to be made on the authority of an expert or purporting to be a copy of, or an extract from, a report, opinion or statement of an expert, the person had no reasonable grounds to believe and did not believe that there had been a misrepresentation or that the part of the circular did not fairly represent the report, opinion or statement of the expert or was not a fair copy of, or extract from, the report, opinion or statement of the expert,
(d) that, with respect to any part of the circular purporting to be made on the person’s own authority as an expert or purporting to be a copy of, or an extract from, the person’s own report, opinion or statement as an expert, but that contains a misrepresentation attributable to failure to represent fairly the person’s report, opinion or statement as an expert,
(i) the person had, after reasonable investigation, reasonable grounds to believe and did believe that the part of the circular fairly represented the person’s report, opinion or statement as an expert, or
(ii) on becoming aware that the part of the circular did not fairly represent the person’s report, opinion or statement as an expert, the person advised the Commission and gave reasonable general notice that such use had been made and that the person would not be responsible for that part of the circular, or
(e) that, with respect to a false statement purporting to be a statement made by an official person or contained in what purports to be a copy of, or an extract from, a public official document, it was a correct and fair representation of the statement or copy of, or extract from, the document, and the person had reasonable grounds to believe and did believe that the statement was true.
153(6)No person, other than the offeror, is liable under subsection (1), (2) or (3) with respect to any part of the circular purporting to be made on the person’s own authority as an expert or purporting to be a copy of, or an extract from, the person’s own report, opinion or statement as an expert unless the person
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or
(b) believed there had been a misrepresentation.
153(7)No person, other than the offeror, is liable under subsection (1), (2) or (3) with respect to any part of the circular not purporting to be made on the authority of an expert and not purporting to be a copy of, or an extract from, a report, opinion or statement of an expert unless the person
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or
(b) believed there had been a misrepresentation.
153(8)All or any one or more of the persons referred to in subsection (1), (2) or (3) are jointly and severally liable, and every person who becomes liable to make any payment under this section may recover a contribution from any person who, if sued separately, would have been liable to make the same payment unless the court rules that, in all the circumstances of the case, to permit recovery of the contribution would not be just and equitable.
153(9)In an action for damages under subsection (1), (2) or (3) based on a misrepresentation affecting securities offered by the offeror in exchange for securities of the offeree, the defendant is not liable for all or any portion of the damages that the defendant proves do not represent the depreciation in value of the securities as a result of the misrepresentation.
153(10)Repealed: 2007, c.38, s.163
153(11)The right of action for rescission or damages conferred by this section is in addition to and without derogation from any other right the security holders of the offeree issuer may have at law.
2007, c.38, s.163; 2012, c.31, s.15
Liability for misrepresentation in circular
153(1)Where a take-over bid circular or any notice of change or variation in respect of a take-over bid circular is required to be sent under the regulations and that document contains a misrepresentation, a person to whom the circular or notice was sent shall be deemed to have relied on the misrepresentation and may elect to exercise a right of rescission or a right of action for damages against the offeror or a right of action for damages against
(a) every person who at the time the circular or notice, as the case may be, was signed was a director of the offeror,
(b) every person whose consent in respect of the circular or notice, as the case may be, has been filed as required by the regulations, but only with respect to reports, opinions or statements that have been made by the person, and
(c) each person who, as required by the regulations, signed a certificate in the circular or notice, as the case may be, other than the persons referred to in paragraph (a).
153(2)Where a directors’ circular or an individual director’s or officer’s circular or any notice of change or variation in respect of such circular is required to be sent under the regulations and that document contains a misrepresentation, a person to whom the circular or notice was sent shall be deemed to have relied on the misrepresentation and has a right of action for damages against every director or officer who signed the circular or notice that contained the misrepresentation.
153(3)Subsection (1) applies with the necessary modifications where an issuer bid circular or any notice of change or variation in respect of such circular contains a misrepresentation.
153(4)No person is liable under subsection (1), (2) or (3) if the person proves that the security holder had knowledge of the misrepresentation.
153(5)No person, other than the offeror, is liable under subsection (1), (2) or (3) if the person proves
(a) that the take-over bid circular, issuer bid circular, directors’ circular or individual director’s or officer’s circular, as the case may be, or any notice of change or variation in respect of such circular was sent without the person’s knowledge or consent and that, on becoming aware of it, the person gave reasonable general notice that it was so sent,
(b) that, after the sending of the take-over bid circular, issuer bid circular, directors’ circular or individual director’s or officer’s circular, as the case may be, or any notice of change or variation in respect of such circular, on becoming aware of any misrepresentation in the take-over bid circular, issuer bid circular, directors’ circular, individual director’s or officer’s circular or notice of change or variation, the person withdrew the person’s consent to it and gave reasonable general notice of the withdrawal and the reason for the withdrawal,
(c) that, with respect to any part of the circular purporting to be made on the authority of an expert or purporting to be a copy of, or an extract from, a report, opinion or statement of an expert, the person had no reasonable grounds to believe and did not believe that there had been a misrepresentation or that the part of the circular did not fairly represent the report, opinion or statement of the expert or was not a fair copy of, or extract from, the report, opinion or statement of the expert,
(d) that, with respect to any part of the circular purporting to be made on the person’s own authority as an expert or purporting to be a copy of, or an extract from, the person’s own report, opinion or statement as an expert, but that contains a misrepresentation attributable to failure to represent fairly the person’s report, opinion or statement as an expert,
(i) the person had, after reasonable investigation, reasonable grounds to believe and did believe that the part of the circular fairly represented the person’s report, opinion or statement as an expert, or
(ii) on becoming aware that the part of the circular did not fairly represent the person’s report, opinion or statement as an expert, the person advised the Commission and gave reasonable general notice that such use had been made and that the person would not be responsible for that part of the circular, or
(e) that, with respect to a false statement purporting to be a statement made by an official person or contained in what purports to be a copy of, or an extract from, a public official document, it was a correct and fair representation of the statement or copy of, or extract from, the document, and the person had reasonable grounds to believe and did believe that the statement was true.
153(6)No person, other than the offeror, is liable under subsection (1), (2) or (3) with respect to any part of the circular purporting to be made on the person’s own authority as an expert or purporting to be a copy of, or an extract from, the person’s own report, opinion or statement as an expert unless the person
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or
(b) believed there had been a misrepresentation.
153(7)No person, other than the offeror, is liable under subsection (1), (2) or (3) with respect to any part of the circular not purporting to be made on the authority of an expert and not purporting to be a copy of, or an extract from, a report, opinion or statement of an expert unless the person
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or
(b) believed there had been a misrepresentation.
153(8)All or any one or more of the persons referred to in subsection (1), (2) or (3) are jointly and severally liable, and every person who becomes liable to make any payment under this section may recover a contribution from any person who, if sued separately, would have been liable to make the same payment unless the court rules that, in all the circumstances of the case, to permit recovery of the contribution would not be just and equitable.
153(9)In an action for damages under subsection (1), (2) or (3) based on a misrepresentation affecting securities offered by the offeror in exchange for securities of the offeree, the defendant is not liable for all or any portion of the damages that the defendant proves do not represent the depreciation in value of the securities as a result of the misrepresentation.
153(10)Repealed: 2007, c.38, s.163
153(11)The right of action for rescission or damages conferred by this section is in addition to and without derogation from any other right the security holders of the offeree issuer may have at law.
2007, c.38, s.163
Liability for misrepresentation in circular
153(1)Where a take-over bid circular delivered to the security holders of an offeree issuer as required by Part 9 or any notice of change or variation in respect of a take-over bid circular contains a misrepresentation, every such security holder shall be deemed to have relied on the misrepresentation and may elect to exercise a right of rescission or a right of action for damages against the offeror or a right of action for damages against
(a) every person who at the time the circular or notice, as the case may be, was signed was a director of the offeror,
(b) every person whose consent in respect of the circular or notice, as the case may be, has been filed as required by the regulations, but only with respect to reports, opinions or statements that have been made by the person, and
(c) each person who, as required by the regulations, signed a certificate in the circular or notice, as the case may be, other than the persons referred to in paragraph (a).
153(2)Where a directors’ circular or an individual director’s or officer’s circular delivered to the security holders of an offeree issuer as required by Part 9 or any notice of change or variation in respect of such circular contains a misrepresentation, every such security holder shall be deemed to have relied on the misrepresentation and has a right of action for damages against every director or officer who signed the circular or notice that contained the misrepresentation.
153(3)Subsection (1) applies with the necessary modifications where an issuer bid circular or any notice of change or variation in respect of such circular contains a misrepresentation.
153(4)No person is liable under subsection (1), (2) or (3) if the person proves that the security holder had knowledge of the misrepresentation.
153(5)No person, other than the offeror, is liable under subsection (1), (2) or (3) if the person proves
(a) that the take-over bid circular, issuer bid circular, directors’ circular or individual director’s or officer’s circular, as the case may be, was delivered without the person’s knowledge or consent and that, on becoming aware of it, the person gave reasonable general notice that it was so delivered,
(b) that, after the delivery of the take-over bid circular, issuer bid circular, directors’ circular or individual director’s or officer’s circular, as the case may be, on becoming aware of any misrepresentation in the take-over bid circular, issuer bid circular, directors’ circular or individual director’s or officer’s circular, the person withdrew the person’s consent to it and gave reasonable general notice of the withdrawal and the reason for the withdrawal,
(c) that, with respect to any part of the circular purporting to be made on the authority of an expert or purporting to be a copy of, or an extract from, a report, opinion or statement of an expert, the person had no reasonable grounds to believe and did not believe that there had been a misrepresentation or that the part of the circular did not fairly represent the report, opinion or statement of the expert or was not a fair copy of, or extract from, the report, opinion or statement of the expert,
(d) that, with respect to any part of the circular purporting to be made on the person’s own authority as an expert or purporting to be a copy of, or an extract from, the person’s own report, opinion or statement as an expert, but that contains a misrepresentation attributable to failure to represent fairly the person’s report, opinion or statement as an expert,
(i) the person had, after reasonable investigation, reasonable grounds to believe and did believe that the part of the circular fairly represented the person’s report, opinion or statement as an expert, or
(ii) on becoming aware that the part of the circular did not fairly represent the person’s report, opinion or statement as an expert, the person advised the Commission and gave reasonable general notice that such use had been made and that the person would not be responsible for that part of the circular, or
(e) that, with respect to a false statement purporting to be a statement made by an official person or contained in what purports to be a copy of, or an extract from, a public official document, it was a correct and fair representation of the statement or copy of, or extract from, the document, and the person had reasonable grounds to believe and did believe that the statement was true.
153(6)No person, other than the offeror, is liable under subsection (1), (2) or (3) with respect to any part of the circular purporting to be made on the person’s own authority as an expert or purporting to be a copy of, or an extract from, the person’s own report, opinion or statement as an expert unless the person
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or
(b) believed there had been a misrepresentation.
153(7)No person, other than the offeror, is liable under subsection (1), (2) or (3) with respect to any part of the circular not purporting to be made on the authority of an expert and not purporting to be a copy of, or an extract from, a report, opinion or statement of an expert unless the person
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or
(b) believed there had been a misrepresentation.
153(8)All or any one or more of the persons referred to in subsection (1), (2) or (3) are jointly and severally liable, and every person who becomes liable to make any payment under this section may recover a contribution from any person who, if sued separately, would have been liable to make the same payment unless the court rules that, in all the circumstances of the case, to permit recovery of the contribution would not be just and equitable.
153(9)In an action for damages under subsection (1), (2) or (3) based on a misrepresentation affecting securities offered by the offeror in exchange for securities of the offeree, the defendant is not liable for all or any portion of the damages that the defendant proves do not represent the depreciation in value of the securities as a result of the misrepresentation.
153(10)Where the offeror in a take-over bid described in paragraph 112(1)(a) or in an issuer bid described in paragraph 113(e) is required by the by-laws or other regulatory instruments or the practices or policies of the exchange through the facilities of which the take-over bid or issuer bid is made to file with the exchange or to deliver to security holders of the offeree issuer a disclosure document, the disclosure document shall be deemed, for the purposes of this section, to be a take-over bid circular or issuer bid circular, as the case may be, delivered to the security holders as required by Part 9.
153(11)The right of action for rescission or damages conferred by this section is in addition to and without derogation from any other right the security holders of the offeree issuer may have at law.
2007, c.38, s.163
Liability for misrepresentation in circular
153(1)Where a take-over bid circular delivered to the security holders of an offeree issuer as required by Part 9 or any notice of change or variation in respect of a take-over bid circular contains a misrepresentation, every such security holder shall be deemed to have relied on the misrepresentation and may elect to exercise a right of rescission or a right of action for damages against the offeror or a right of action for damages against
(a) every person who at the time the circular or notice, as the case may be, was signed was a director of the offeror,
(b) every person whose consent in respect of the circular or notice, as the case may be, has been filed as required by the regulations, but only with respect to reports, opinions or statements that have been made by the person, and
(c) each person who, as required by the regulations, signed a certificate in the circular or notice, as the case may be, other than the persons referred to in paragraph (a).
153(2)Where a directors’ circular or an individual director’s or officer’s circular delivered to the security holders of an offeree issuer as required by Part 9 or any notice of change or variation in respect of such circular contains a misrepresentation, every such security holder shall be deemed to have relied on the misrepresentation and has a right of action for damages against every director or officer who signed the circular or notice that contained the misrepresentation.
153(3)Subsection (1) applies with the necessary modifications where an issuer bid circular or any notice of change or variation in respect of such circular contains a misrepresentation.
153(4)No person is liable under subsection (1), (2) or (3) if the person proves that the security holder had knowledge of the misrepresentation.
153(5)No person, other than the offeror, is liable under subsection (1), (2) or (3) if the person proves
(a) that the take-over bid circular, issuer bid circular, directors’ circular or individual director’s or officer’s circular, as the case may be, was delivered without the person’s knowledge or consent and that, on becoming aware of it, the person gave reasonable general notice that it was so delivered,
(b) that, after the delivery of the take-over bid circular, issuer bid circular, directors’ circular or individual director’s or officer’s circular, as the case may be, on becoming aware of any misrepresentation in the take-over bid circular, issuer bid circular, directors’ circular or individual director’s or officer’s circular, the person withdrew the person’s consent to it and gave reasonable general notice of the withdrawal and the reason for the withdrawal,
(c) that, with respect to any part of the circular purporting to be made on the authority of an expert or purporting to be a copy of, or an extract from, a report, opinion or statement of an expert, the person had no reasonable grounds to believe and did not believe that there had been a misrepresentation or that the part of the circular did not fairly represent the report, opinion or statement of the expert or was not a fair copy of, or extract from, the report, opinion or statement of the expert,
(d) that, with respect to any part of the circular purporting to be made on the person’s own authority as an expert or purporting to be a copy of, or an extract from, the person’s own report, opinion or statement as an expert, but that contains a misrepresentation attributable to failure to represent fairly the person’s report, opinion or statement as an expert,
(i) the person had, after reasonable investigation, reasonable grounds to believe and did believe that the part of the circular fairly represented the person’s report, opinion or statement as an expert, or
(ii) on becoming aware that the part of the circular did not fairly represent the person’s report, opinion or statement as an expert, the person advised the Commission and gave reasonable general notice that such use had been made and that the person would not be responsible for that part of the circular, or
(e) that, with respect to a false statement purporting to be a statement made by an official person or contained in what purports to be a copy of, or an extract from, a public official document, it was a correct and fair representation of the statement or copy of, or extract from, the document, and the person had reasonable grounds to believe and did believe that the statement was true.
153(6)No person, other than the offeror, is liable under subsection (1), (2) or (3) with respect to any part of the circular purporting to be made on the person’s own authority as an expert or purporting to be a copy of, or an extract from, the person’s own report, opinion or statement as an expert unless the person
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or
(b) believed there had been a misrepresentation.
153(7)No person, other than the offeror, is liable under subsection (1), (2) or (3) with respect to any part of the circular not purporting to be made on the authority of an expert and not purporting to be a copy of, or an extract from, a report, opinion or statement of an expert unless the person
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or
(b) believed there had been a misrepresentation.
153(8)All or any one or more of the persons referred to in subsection (1), (2) or (3) are jointly and severally liable, and every person who becomes liable to make any payment under this section may recover a contribution from any person who, if sued separately, would have been liable to make the same payment unless the court rules that, in all the circumstances of the case, to permit recovery of the contribution would not be just and equitable.
153(9)In an action for damages under subsection (1), (2) or (3) based on a misrepresentation affecting securities offered by the offeror in exchange for securities of the offeree, the defendant is not liable for all or any portion of the damages that the defendant proves do not represent the depreciation in value of the securities as a result of the misrepresentation.
153(10)Where the offeror in a take-over bid described in paragraph 112(1)(a) or in an issuer bid described in paragraph 113(e) is required by the by-laws or other regulatory instruments or the practices or policies of the exchange through the facilities of which the take-over bid or issuer bid is made to file with the exchange or to deliver to security holders of the offeree issuer a disclosure document, the disclosure document shall be deemed, for the purposes of this section, to be a take-over bid circular or issuer bid circular, as the case may be, delivered to the security holders as required by Part 9.
153(11)The right of action for rescission or damages conferred by this section is in addition to and without derogation from any other right the security holders of the offeree issuer may have at law.